Switzerland: legal dispute over Alberto Giacometti collection

Posted on: July 18, 2016 by

Following a host of recent articles regarding the seizure of a Giacometti collection, this blog aims to shed some light on the case:

On 24 February 2014, the State Prosecutor of the Canton of Graubünden seized as a precautionary measure a collection of Giacometti works from the Bündner Kunstmuseum. The Paris-based Fondation Alberto et Annette Giacometti had reported to the police that the collection had been “fraudulently stolen from the Foundation and was believed to be in the Kunstmuseum”.

The French law enforcement authorities are currently undertaking criminal investigations against persons unknown on suspicion of theft and handling stolen goods. As part of their investigations, they asked the Swiss authorities to assist them with the following measures of mutual assistance: a) to check whether the collection was still located in the Kunstmuseum, and if so, to seize it as a precautionary measure, and b) to interrogate the owner of the works as well as anyone who can provide information on their provenance.

The collection contains 16 drawings by Alberto Giacometti as well as 101 photographs by well-known photographers such as Henri Cartier-Bresson, Robert Doisneau and Man Ray, depicting this most famous of Swiss artists. The photographs provide an intimate insight into the life of Giacometti, showing the artist in his studios in Paris, Stampa, and Maloja, as well as his private life with his wife Annette. These photographs were part of Giacometti’s private collection, with many photographs having personal comments and dedications.

02_1639In December 2008, a Swiss collector offered the collection to the Kunstmuseum. The Kunstmuseum’s director at that time stated that after Giacometti’s death, the artist’s wife gave the collection to her niece, who later gifted it to the Swiss collector. During their investigations, the Swiss authorities were presented with a statement by the niece dated 8 March 2011, according to which she had received various documents from her aunt as a gift in the years 1984 and 1985 (“quelques dessins non signés et des photos représentant N. et D. E [NB Giacometti and his wife]”). The statement further reveals that she had later gifted the documents to the Swiss collector in 1998.

In 2009, through the introduction by the then director of the Kunstmuseum, a local entrepreneur acquired the Giacometti collection for 1 million Swiss Francs and loaned it to the museum for a duration of 15 years (the entrepreneur later transferred the collection to a company). In 2011, the Kunstmuseum made the collection accessible to the public for the first time in the exhibition “Alberto Giacometti – neu gesehen“.

On 6 November 2015, both the entrepreneur and the company, filed an appeal to the Swiss Federal Criminal Court. They requested inter alia the cancellation of the seizure or, at least, the permission to exhibit the seized collection pending a decision by the French court. However, on 13 April 2016, the Court dismissed the appeal for lack of entitlement to appeal.

According to art. 80h lit. b of the Swiss Federal Act on International Mutual Assistance in Criminal Matters (Mutual Assistance Act) “any person who is personally and directly affected by a mutual assistance measure and has a legitimate interest in that measure being annulled or modified” has a right to appeal. The Court argues that in case of a precautionary seizure, only the owner or tenant of the searched premises is personally and directly affected.

As a result, the Giacometti collection remains seized pending a decision of the French courts. If the courts come to the conclusion that the Giacometti collection was indeed stolen, the French law enforcement authorities could file a separate request by means of mutual assistance in criminal matters for the handover of the collection (see art. 74a para. 3 Mutual Assistance Act). This measure could then be appealed by the company as the current legal owner of the Giacometti collection.